Aiellos v. Zisa

On June 24, 2009, Plaintiffs, current and former officers of the Hackensack Police Department ("HPD"), filed an eleven-count civil rights action against Defendant HPD Chief of Police, C. Kenneth Zisa, and others, alleging that the Defendants violated their constitutional rights. (Doc. No. 1.) On August 3, 2009, Plaintiffs filed a more detailed twelve-count Amended Complaint (Doc. No. 9) which has since become the operative complaint by order of the Court (Doc. No. 19). Since that time, additional complaints have been filed by other plaintiffs and their actions have been consolidated into a common civil action number (Civil Action No. 09-3076). On January 28, 2010, HPD Officers Jennifer Finley and Alberto Gutierrez filed one such complaint (the "Finley Complaint"), containing three counts, two of which were against Chief Zisa. Count I alleged that Zisa infringed Plaintiffs' constitutional rights. This was asserted as a civil rights action under Section 1983, and it is similar to the claims brought by other plaintiffs in this consolidated action. In addition, Count III, brought only by Plaintiff Gutierrez, alleged a claim of unjust enrichment against Zisa. Defendant Zisa filed a motion to dismiss Counts I and III (the "Motion") but later withdrew his motion to dismiss Count I.

Presently before the Court is Defendant Zisa's motion to dismiss Count III of the Finley Complaint. The Court, for the reasons elaborated below, will GRANT in PART Defendant C. Kenneth Zisa's motion to dismiss. Count III of the Finley Complaint will be DISMISSED without prejudice to refilling in state court.

II. FACTUAL BACKGROUND ALLEGED IN THE COMPLAINT

The gravamen of the Complaint is that the Hackensack Chief of Police, Defendant Zisa, engaged in a pattern of extortion, against other HPD officers, i.e., Plaintiffs, seeking, among other things, political donations to further Zisa's political career and the political career of those allied with them, including candidates for office within the Policemen's Benevolent Association ("PBA") of Hackensack. It is further alleged that those who were not allied with Zisa, including those officers who refused to donate to Zisa and his allies political campaigns, were subject to retaliation and threats of retaliation in violation of Plaintiffs' First Amendment free speech and freedom of association rights.

Specifically, the Finley Complaint alleged that in June of 2008 Defendant Zisa made it openly known that he wanted Detective Tina Clouse to win the PBA delegate election. Moreover, Zisa made it clear that all HPD officers must vote for Clouse as a demonstration of their loyalty to him, and those who did not would be retaliated against in the workplace by demotions and undesirable transfers. When Plaintiffs Finely and Gutierrez failed to show their ballots to a Zisa confidant as proof they had voted for Clouse, Plaintiffs were transferred and demoted from their prestigious positions in the Special Investigation Division and the Narcotics Division, respectively, to the less desirable Patrol Division. Furthermore, Plaintiffs claimed they were retaliated against for their support of (and association with) HPD officers who were litigants in other civil actions brought against Zisa.

In addition, the Finley Complaint stated that in 2006 Defendant Zisa used his position as Chief of Police to coerce Plaintiff Gutierrez into performing plumbing services for Zisa at his personal residence in Hackensack. The plumbing services included the installation of a sewer line, hot water heater, and other repairs. Plaintiff Gutierrez was not compensated for his labor or the cost of the materials needed to perform the repairs. He performed these services because he feared retaliation by Zisa in the form of demotions or undesirable transfers.

III. STANDARD OF REVIEW

The Defendant's motion to dismiss is brought pursuant to the provisions of Fed. R. Civ. P. 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating "no set of facts" language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Id. Furthermore, in order satisfy federal pleading requirements, the plaintiff must "provide the grounds of his entitlement to relief," which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting Twombly, 550 U.S. at 555).

In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). However, the court may not rely on other parts of the record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

IV. ANALYSIS

The Defendant's motion argues that the unjust enrichment claim, Count III, should be dismissed because the Court does not have supplemental jurisdiction over that claim. To establish supplemental jurisdiction, a claim must be "so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367 (1990). The Supreme Court has laid ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.